Supreme Court Rules Cheerleader’s Profane Social Media Post is Protected Free Speech

What’s the story?

• The Supreme Court on Wednesday ruled that a public high school in Pennsylvania violated the First Amendment rights of a freshman cheerleader by suspending her for a profanity-laced social media post she made while off-campus.
• The case, known as Mahanoy Area School District v. B.L., concerned a First Amendment dispute that arose after then-14-year old Brandi Levy failed to make the Mahanoy Area High School varsity cheerleading squad in 2017 shortly after she failed to get a position on a softball team as well. 
• At an off-campus convenience store with a friend over the weekend, Levy posted a Snapchat video with a friend in which she vented, “F*** school f*** softball f*** cheer f*** everything,” while she and her friend raised their middle fingers. 
• One of Levy’s Snapchat followers showed the video to her mother, a cheer coach at the school, and other cheerleaders went to the coaches while “visibly upset” about the post. Despite Levy’s apologies, the coaches suspended Levy from the junior varsity cheer team for a year, which was upheld by the school’s principal, superintendent, and the school board.
• Given that Levy was a minor at the time, her parents sued on her behalf, and a federal district court granted an injunction to allow her to cheer before it ultimately found the school violated her First Amendment rights. The decision was affirmed by the Third Circuit on slightly different grounds. The Supreme Court ruled in an 8-1 decision that Levy’s posts were protected speech and that the high school violated her First Amendment rights.

What did the justices say?

• Justice Stephen Breyer wrote the majority opinion which was joined by Chief Justice John Roberts, Justice Samuel Alito, Justice Sonia Sotomayor, Justice Elena Kagan, Justice Neil Gorsuch, Justice Brett Kavanaugh, and Justice Amy Coney Barrett. Alito also wrote a concurring opinion that was joined by Gorsuch.
• Breyer’s majority opinion read in part:

“[W]e do not now set forth a broad, highly general First Amendment rule stating just what counts as “off campus” speech and whether or how ordinary First Amendment standards must give way off campus to a school’s special need to prevent, e.g., substantial disruption of learning-related activities or the protection of those who make up a school community. We can, however, mention three features of off-campus speech that often, even if not always, distinguish schools’ efforts to regulate that speech from their efforts to regulate on-campus speech. Those features diminish the strength of the unique educational characteristics that might call for special First Amendment leeway. 

First, a school, in relation to off-campus speech, will rarely stand in loco parentis… Geographically speaking, off-campus speech will normally fall within the zone of parental, rather than school-related, responsibility. Second, from the student speaker’s perspective, regulations of off-campus speech, when coupled with regulations of on-campus speech, include all the speech a student utters during the full 24-hour day. That means courts must be more skeptical of a school’s efforts to regulate off-campus speech, for doing so may mean the student cannot engage in that kind of speech at all… Third, the school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus. America’s public schools are the nurseries of democracy. Our representative democracy only works if we protect the “marketplace of ideas.” This free exchange facilitates an informed public opinion, which, when transmitted to lawmakers, helps produce laws that reflect the People’s will. That protection must include the protection of unpopular ideas, for popular ideas have less need for protection...

Consider B.L.’s speech. Putting aside the vulgar language, the listener would hear criticism, of the team, the team’s coaches, and the school―in a word or two, criticism of the rules of a community of which B.L. forms a part. This criticism did not involve features that would place it outside the First Amendment’s ordinary protection. B.L.’s posts, while crude, did not amount to fighting words. And while B.L. used vulgarity her speech was not obscene as this Court has understood that term. To the contrary, B.L. uttered the kind of pure speech to which, were she an adult, the First Amendment would provide strong protection. (First Amendment protects “even hurtful speech on public issues to ensure that we do not stifle public debate”)...

It might be tempting to dismiss B.L.’s words as unworthy of the robust First Amendment protections discussed herein. But sometimes it is necessary to protect the superfluous in order to preserve the necessary. “We cannot lose sight of the fact that, in what otherwise might seem a trifling and annoying instance of individual distasteful abuse of a privilege, these fundamental societal values are truly implicated.”

• Justice Clarence Thomas wrote a dissent that argued the Court to address more broadly how the First Amendment applies to student speech:

“The Court transparently takes a common-law approach to today’s decision. In effect, it states just one rule: Schools can regulate speech less often when that speech occurs off campus. It then identifies this case as an “example” and “leav[es] for future cases” the job of developing this new common-law doctrine. But the Court’s foundation is untethered from anything stable, and courts (and schools) will almost certainly be at a loss as to what exactly the Court’s opinion today means. Perhaps there are good constitutional reasons to depart from the historical rule, and perhaps this Court and lower courts will identify and explain these reasons in the future. But because the Court does not do so today, and because it reaches the wrong result under the appropriate historical test, I respectfully dissent.”

— Eric Revell

(Photo Credit: Screenshot by the Levy Family)